Article Originally appeared in Tattoo Master Magazine 2014
Copying in the tattoo industry is ubiquitous. Many traditional
tattoos such as roses, swallows, and daggers, are staples within
the tattoo industry and, well, how original can a skull and cross
bones be? Most tattoo artists can cite several other artists that
have inspired their work and in turn have contributed to the
development of their personal style. But what about custom
tattoos, one of a kind pieces carefully drawn with skill and
creativity – is it okay to copy them? It is said that imitation is the
greatest form of flattery, but it’s not always easy to determine
where imitation ends and theft begins.
Internet chat forums are full of irate artists bemoaning the fact
that their designs have been appropriated by other artists. When,
in 2011, S. Victor Whitmill, the award-winning tattoo artist who
created Mike Tyson’s distinctive facial tattoo design filed suit
against Warner Brothers for using his tattoo design in the movie
“The Hangover II”, I knew it was only a matter of time before the
question was asked. Can I really sue someone for copying my
design?
Historically the tattoo industry was considered outside the law
and not subject to the same laws and regulations as other art
forms. However, cultural norms have changed dramatically in the
last two decades and tattoo culture has now entered the
mainstream. Once the preserve of the alternative, lawyers,
school teachers and doctors are now as likely to have tattoos as
musicians and bikers. An estimated one in five in the UK now has
at least one tattoo. You can get a tattoo in Selfridges. David
Cameron’s wife has one, much to the tabloid newspaper’s
delight.
The rise in popularity of tattoos has seen a parallel increase in
interest regarding the intellectual property issues related to
them. The application of copyright law to tattoos is a relatively
new concept. Rather unsurprisingly, the trend for bringing legal
action started in the world’s most litigious country, the good old
US of A. Although tattooing was only legalised in New York in
1997 and in much of the rest of the United States in the early
2000’s, our American cousins started suing each other almost
immediately. Most of the contentious issues haven’t been related
to one artist copying the work of another, but as a result of
clients, usually celebrities, using the tattoo for commercial gain.
Over here in Blighty, relations are a lot more amicable and there
is no history of litigation relating to copyright and tattoos. The
closest we’ve got was when in 2005, tattoo artist Louis Molloy
threatened to sue David Beckham if he went ahead with a
promotional campaign that focused on the guardian angel that
Molloy had designed and tattooed on the footballer‘s back. He
never carried through with the threats, most likely silenced with
a hefty payout from the Beckham PR machine. Most tattooists I
spoke with on the issue expressed skepticism about the use of
the legal system in preventing copying in the industry. “It would
open up a Pandora’s box”, said Mo Copoletta from the Family
Business studio in Islington, “it would be never ending”.
But just like Linkin Park, reality TV shows and a host of other ill
advised American trends, tattoo litigation will arrive here
eventually. And the result won’t be pretty. With no legal
precedent, nobody knows for sure how suits will play out in
court. The closest related court case I could find was when an
English court rejected Adam Ant’s attempt to prevent the
unauthorized use of his distinctive makeup in 1983. He argued
that it was original, distinctive, and constituted a painting. The
court disagreed on the basis that makeup was easily removable
and wasn’t sufficiently permanent. (No, I don’t see why anyone
would want to copy the painting of a white stripe across his or
her face either, but I digress).
The real question is to what extent can copyright law apply to
artwork permanently fixed to a human body? Unlike Adam Ant’s
makeup there is no danger of a tattoo being easily erased; laser
removal can hardly be described as easy.
Technically under English law, a tattoo design can be protected
as an artistic work under the Copyright, Designs and Patent Act.
To dispel a myth, here in the UK it is not necessary to register
copyright. Copyright protection is automatic as soon as there is a
record in any form of what has been created and protection lasts
for the life of the artist plus an additional seventy years. So as
soon as a custom tattoo has been drawn, either on paper as a
drawing or directly on the skin as a tattoo, it has copyright
protection, providing, and here’s the clincher, that it’s original.
But in a world full of day of the dead imagery and tribal designs
what’s original?
Actually, the test isn’t particularly stringent. A work can be
original, in the legal sense, without being novel or unique. Just
because a rose has been tattooed a million times before, doesn’t
mean it can’t be protected by copyright law, providing artist
displays an minimal level of creativity – perhaps the petals, stem
or shades are presented in a distinctive way. However, you might
have a harder time proving your rose meets the required level of
originality than say a detailed custom produced piece with
several different stylistic elements.
The next obvious question is whether can there ever be an exact
copy of a tattoo? Human beings are different shapes and have
different skin colouring to one another. Ink and colour take to
skin differently from person to person. A custom tattoo design on
the back of a white eighteen-year-old girl won’t look the same on
the arm of a fifty-year-old black man. If the image is not exactly
the same does this mean that there is no violation of copyright?
Not so. The two works only need to be substantially similar. So
while a copied design might differ owing to skin texture, this
difference would, in theory, not present a barrier to a copyright
infringement action.
So, if tattoos can be protected under the copyright act, who
owns the copyright? Is it the artist? The client? Generally
speaking with artwork, the creator of the art is the owner of the
copyright. But there are exceptions to this. If work is created in
the scope of employment, the employer is the owner of the
rights, unless there is an agreement to the contrary. So,
depending on the terms of a tattooists employment, this could
mean the tattoo studio owner that employs a tattoo artist owns
the copyright.
Both of these scenarios present some awkward legal issues. If
anyone other than the customer owns the copyright, they also
have the power to control it, would this also give the copyright
owner the power to prevent someone from augmenting or
destroying the tattoo? If the copyright owner wanted the image
destroyed, could they force a tattoo client to go under the laser?
It seems unlikely any judge would force a client to receive laser
treatment because the original artist or copyright owner wanted
the tattoo destroyed, or conversely deny the client the right to
remove or augment the tattoo should they so wish. For one this
would present a conflict with human rights law. But
hypothetically speaking, this could be a result of applying general
copyright law to tattoos. This is the problem with attempting to
shoehorn tattoos into general copyright law – the application of
these laws just won’t sit comfortably when applied to art fixed
to another human being.
Interestingly, most tattooists do recognize the personal freedom
interests of their clients and consider the client to be the owner
of the tattoo to do whatever they like with. Tattooists refrain
from reusing custom designs on other clients for the same
reasons. All the tattoo artists I’ve spoken to agree that they
create the art for their client and do not consider themselves the
owner of the copyright. “The client has paid for my design,” said
Copoletta. Paul Hayde speaking from his tattoo studio
Reinkarnated in Dublin is of the same mind. “I have no ownership
rights over that tattoo, it’s their’s to do whatever they want
with”.
Thus, while copying in the industry is not actively encouraged,
not many tattooists would ever consider legal action against a
client or another tattoo artist. Industry norms that have
developed over centuries of tattooing continue to be adhered to,
and copying it seems, is just part and parcel of life as a tattoo
artist. Those that do copy are unlikely to gain much respect, but
they aren’t considered a major threat either. They’re unlikely to
go far – those that reach the higher echelons of success are the
artists that are innovative, creative and always one step ahead of
the rest. Social Media sites like Instagram’s Tracemaster offer
aggrieved tattoo artists a place to name and shame those that
have copied their designs. “I’d be mortified if I copied and the
pictures ended up on Tracemaster” said one tattoo artist who
prefers to stay anonymous “it would destroy my reputation, to be
honest that would be a bigger deterrent than getting sued”.
However, some artists are more sympathetic to leveraging
copyright law if it involved the unauthorized use of designs on
merchandise or the use of designs in advertising large
corporations. It seems nobody wants ‘the man’ cashing in on the
work of individual artists. Nonetheless the general consensus is
that anyone taking on a large corporation for copyright
infringement is wasting their time. Not many tattoo artists have
the time or funds to take on a multi billion corporation like
Warner Brothers. This explains the reason no lawsuit has ever
gone to court in the US, despite the fact several have been filed.
Large corporations with huge legal teams can quickly crush an
individual tattoo artist with limited time and budget leaving
settlement as the only viable option.
The tattoo industry, which has traditionally operated outside the
realm of copyright law, continues to flourish and grow without
this protection. What’s the advantage of bring the law into things
now? Given the risk that enforcing an artist’s copyright in a
tattoo may interfere with the autonomy and personal freedom of
the tattoo client, the introduction of copyright law just doesn’t
sit easily. Unlike other creative industries, it simply doesn’t seem
necessary in the tattoo industry. Nonetheless, we can only hope
that when tattoo copyright cases finally reach the courts that
judges take the industry norms that have developed over centuries
into consideration and show sensitivity to the competing interests
of both the copyright owner and the human being to whom the
tattoo is fixed.
Wigs And Gowns 